In March 2020, as the severity of the COVID-19 pandemic in the United States began to emerge, state and local governments took historic steps to shut down all nonessential activity in their jurisdictions.  As of April 20, “at least 316 million people in at least 42 states, three counties, 10 cities, the District of Columbia and Puerto Rico” were subject to some form of a government order or proclamation calling for all nonessential workers to stay-at-home (except for necessary trips to places such as pharmacies and grocery stores).  Whereas these critical shelter-in-place (“SIP”) measures have helped to slow the progression of the virus, they have also had a devastating effect on most sectors of the economy. In just the five-week period ending April 18, 26.4 million workershad filed new claims for unemployment compensation.

In an effort to stimulate the economy – while still prioritizing public health and safety – the federal government as well as a number of state and local governments have begun to explore, and in some cases implement, strategies to gradually reopen certain sectors of the economy.  In assessing such plans, employers need to be mindful of both the practical hurdles and legal pitfalls inherent in such initiatives, and ensure that their return-to-work policies and practices are as safety-focused and otherwise legally sound as possible.  This is no easy task as the business community, along with government officials and the public at large, attempt to navigate largely uncharted territory.

The Federal Government’s Initiative: “Guidelines for Opening Up America Again”

The federal government did not issue a SIP order affecting local governments, private-sector businesses, or the public generally.  Rather, the White House declared a national emergency on March 13, 2020, and, in conjunction with the Centers for Disease Control and Prevention (“CDC”), has periodically released and updated guidelines, such as those published on March 16, 2020—“30 Days to Slow the Spread”—which encouraged work from home, home schooling, social distancing, sound personal hygiene practices, and other voluntary measures to reduce the spread of COVID-19.  As noted above, the decision to issue SIP orders and the extent of such orders has rested with the states and, in some cases, cities and counties.

Accordingly, when President Trump recently decided to focus on encouraging return-to-work initiatives, the federal government again offered guidance rather than a mandate. On April 16, 2020, the White House and CDC released Guidelines for Opening Up America Again (“Federal Guidelines”), a multi-phased, data-based approach to reopening a local economy while simultaneously mitigating the “risk of resurgence” and protecting vulnerable populations (e.g., the elderly and those with underlying health issues), which states (or regions), employers, and individuals may voluntarily choose to follow, in whole or in part.  Throughout the proposed process, each state or region would retain the authority to devise its own timeline and procedures for easing SIP restrictions and setting the specific standards for individuals and businesses to resume specific activities.

Proposed State or Regional Gating Criteria

The Federal Guidelines propose three phases to reopening the local economy.  Prior to initiating each phase, however, the Federal Guidelines instruct that each state or region satisfy the following specific “gating criteria” (to be modified as may be appropriate to the locality’s particular circumstances):

• Symptoms: A 14-day period in which there is a “downward trajectory” of both flu-like illnesses and COVID-19-like “syndromic” cases;
• Cases: A 14-day period of a downward trajectory of documented cases or positive cases “as a percent of total tests within a 14-day period (flat or increasing volume of tests)”;
• Hospitals: The ability to treat all patients without crisis care; and
• Testing: A “[r]obust testing program in place for at-risk healthcare workers, including emerging antibody testing.”^[1]

“Core State Preparedness Responsibilities”

In addition to the gating criteria, the Federal Guidelines recommend that the state or region satisfy the following standards—referred to as “Core State Preparedness Responsibilities”—prior to implementing each of the three phases:

• Testing and Contact Tracing
  • Ability to quickly set up “safe and efficient screening and testing sites” for symptomatic individuals, persons exposed to COVID-19, and asymptomatic individuals belonging to various vulnerable cohorts (e.g., older people, lower-income individuals, racial minorities, and Native Americans), and the ability to trace contacts of COVID-19 results.
• Healthcare System Capacity
  • Ability to “quickly and independently” supply sufficient personal protective equipment (“PPE”), critical medical equipment, and intensive care unit (“ICU”) capacity to handle a “dramatic surge” in need.
• Plans
  • To protect the health and safety of workers in critical industries, individuals working and living in “high-risk facilities” (e.g., senior care facilities), and employees and users of mass transit;
  • To communicate protocols for social distancing and face coverings; and
  • To “[m]onitor conditions and immediately take steps to limit and mitigate any rebounds or outbreaks by restarting a phase or returning to an earlier phase, depending on severity.”

General Guidelines for Employers

Notably, the Federal Guidelines also provide general instructions for employers to follow throughout each phase of the reopening. Specifically, the Federal Guidelines recommend that employers develop and implement policies, in accordance with applicable law and regulations, as well as industry best practices, on the following matters:

• Mandating social distancing and PPE;

• Implementing temperature checks;
• Adopting sanitation practices;
• Disinfecting common and high-traffic areas;
• Limiting nonessential business travel;
• Monitoring of the workforce for indicative symptoms (including prohibiting symptomatic workers from physically returning to the worksite until they are cleared by a medical provider); and
• Developing and implementing policies and procedures for workforce contact tracing should an employee test positive for COVID-19.

As discussed in more detail below, the development and implementation of such policies and practices raise several legal issues.

The Three Phases of Reopening

With respect to the three proposed phases of reopening, the Federal Guidelines recommend the following:

Federal Guidelines: Unanswered Questions

The Federal Guidelines raise issues based on their own mandates and underscore more general issues that are likely to arise from most any state’s particular reopening plan.  For instance, with respect to the Federal Guidelines’ own directives, the materials contain no definitions, except for providing examples of “large venues” and a specific definition of “vulnerable individuals.” What, for example, are “strict physical distancing protocols” (versus “moderate” ones)?  What are “special accommodations” for employees or members of the public who are vulnerable individuals?  Are special accommodations analogous to “reasonable accommodations” as defined by the Americans with Disabilities Act (“ADA”)?  The Federal Guidelines do not address such questions.

On a broader level, and except for a general instruction to follow applicable laws and industry best practices, the Federal Guidelines provide no concrete guidance for employers with respect to such matters as developing and implementing procedures for monitoring symptoms of COVID-19 among the workforce or creating and executing a contact tracing program.  The Federal Guidelines appear to implicitly assume that the states or regions will create such systems.  But what if the state or region where the employer is located does not establish a broad-based testing or tracing program accessible to the employer (remember, states are not required to follow the Federal Guidelines, and are free to initiate a return-to-work program without adopting any of the recommended measures), nor are the states mandated to provide assistance or guidance to employers on such issues.  As a result, employers in many jurisdictions are likely to find themselves on their own with regard to developing and implementing these kinds of procedures and protocols.

Finally, even where a state or region develops a comprehensive return-to-work plan that includes, for instance, expansive testing and contact tracing protocols and that provides specific definitions for such terms as “strict physical distancing,” employers will remain obligated to ensure that their policies and practices comply with all applicable laws and regulations, such as the Occupational Safety and Health Administration’s (“OSHA’s”) safety and reporting requirements, the prohibition against disability, pregnancy, age, national origin, and other types of discrimination under federal, state, and local laws, and all applicable wage and hour laws (e.g., must employees be paid for time spent having their temperature taken?).

The law is in flux on many of the issues employers will confront as they plan return-to-work initiatives.  Indeed, new guidance emerges from various federal and state regulatory agencies and other governmental entities on a near daily basis.  Just last week, for example, OSHA issued new guidance on the reporting of COVID-19 cases at the workplace, and has indicated that it will continue to issue guidance that pertains to particular industries, and even more recently, the Equal Employment Opportunity Commission (“EEOC”) – for the fourth time in one month – clarified the kind of COVID-19-related testing that is permissible under the ADA.

Individual State Reopening Initiatives and Regional Pacts

A report in The New York Times on three states’ return-to-work initiatives, which were implemented on April 24, 2020, illustrates just the “tip-of-the-iceberg” issues inherent in reopening endeavors:

[T]hree states on Friday took tentative steps toward something resembling normalcy.  But across Georgia, Alaska and Oklahoma, it was anything but business as usual . . . A barber giving a trim in Atlanta, with a face mask and latex gloves in place, was dressed more like a surgeon preparing for an appendectomy.  Beauty salons were asking customers to sign legal waivers before they had their hair colored or curled… The Georgia cosmetology board issued guidelines for reopening spas and salons, suggesting the use of masks for clients and workers, temperature checks with infrared thermometers, screening questions (“Have you had a cough? Have you had a fever?”), and by-appointment-only rules.  But the guidelines were not being followed in many reopened salons visited on Friday.

Other states, like Alabama, have set forth a nuanced approach to reopening.  On April 17, 2020, the Alabama Small Business Commission Emergency Task Force released “Reopen Alabama Responsibly,” a detailed, 158-page roadmap setting forth “Phase One” of the state’s return-to-work plans for a range of industries.  The report provides a comprehensive list of health and safety measures and protocols, specific to particular industries, which employers should have in place and ready to implement when they reopen.

For example, restaurants are advised to physically mark distances in waiting areas (or have customers wait outdoors) and to limit total capacity, as well as the number of guests at any one table, to ensure appropriate physical distancing at all times. In contrast, due to their unique structure and operational needs, manufacturing facilities are advised to customize a social distancing strategy based on the facility’s specific layout and workflow.  As of the date of this article, a timeframe for reopening Alabama businesses has not yet been set.

Similarly, the governors of California and New York have indicated that they, too, will take a cautious approach to reopening their respective states.  For example, on April 14, 2020, California Governor Gavin Newsom outlined six critical indicators the state will consider before modifying its stay-at-home order.  These include the capability:

1. to monitor and protect communities through testing, contact tracing, isolating, and supporting those who are positive for or exposed to COVID-19;
2. to prevent infection in people who are at risk for more severe COVID-19;
3. of the hospital and health systems to handle surges in COVID-19 cases;
4. to develop therapeutics to meet the demand;
5. for businesses, schools, and child care facilities to support physical distancing; and
6. to determine when to reinstitute certain measures, such as the stay-at-home orders, if necessary.

Other than laying out these preconditions, Governor Newsom has not yet identified any specifics or a timeline for when a return-to-work initiative might begin.

On April 26, 2020, New York Governor Andrew Cuomo announced a phased plan to reopen business activity in the state that offers some concrete details without a specific starting date for the plan.  In phase one, the state will reopen “low-risk” construction and manufacturing businesses in certain areas—like upstate regions of New York—that have experienced a 14-day decline in the hospitalization rate.

Phase two will entail opening certain industries “based on priority and risk level,” which means prioritizing businesses considered “more essential” but with “inherent low risks of infection in the workplace and to the customer.”  Throughout this process, adjustments will be made as needed, based on “the hospitalization rate, the infection rate, and other key health indicators.”  Notably, Governor Cuomo had previously announced plans to dramatically increase diagnostic testing and to initiate antibody testing, as such data is considered essential to mitigating the risk of a resurgence of COVID-19 cases.

Consistent with the Federal Guidelines, New York State also will implement a two-week waiting period in between phases of the plan to monitor the effect, i.e., to help ensure that the hospitalization and infection rates are not increasing as some workers begin to return to work. In addition, the New York plan tasks businesses and industries with creating comprehensive safety plans designed to lower the risk of infection at the worksite or place of public accommodation.

Finally, the New York plan emphasizes the importance of multistate cooperation to ensure safe and consistent policies. In fact, New York already has joined a multistate coalition to coordinate reopening plans with neighboring states.  To date, three such alliances have been announced across the country:

• The Northeastern States Regional Alliance (“Multi-State Council”), including Connecticut, Delaware, Massachusetts, New Jersey, New York, Pennsylvania, and Rhode Island;
• The Western States Pact, including California, Oregon, and Washington; and
• The Midwestern States Regional Alliance (“Partnership to Reopen Regional Economy”), including Illinois, Indiana, Kentucky, Michigan, Minnesota, Ohio, and Wisconsin.

Generally, the members of these alliances emphasize that their primary goal is to make data-driven decisions as to when and how to restart their economies, and are particularly concerned with having adequate programs and protocols in place to conduct comprehensive diagnostic and antibody testing as well as contact tracing . Indeed, both health experts and business executives are emphasizing the critical role that effective testing procedures will play in ensuring a successful reopening of the U.S. economy. The Infectious Diseases Society of America, for example, cautions that states and cities should not start changing their social distancing policies until “widespread testing allows accurate surveillance of the coronavirus spread.”  Sounding a similar note, business executives reportedly have advised President Trump that the ability to screen employees and customers is essential to building the level of confidence in both workers and the public that will be essential to establishing a meaningful and sustainable reopening of the economy.

Conclusion

Aside from the Federal Guidelines, employers should become familiar with and analyze the return-to-work rules propounded in the states and regions in which they maintain stores, facilities, and/or offices.  Even if an employer is eligible to reopen its business in a particular jurisdiction, based on the guidance in that state or region, it should proceed with caution. For example, while a shutdown order on a particular sector may be lifted, other conditions may complicate a successful reopening, such as schools remaining closed or the unavailability of adequate testing materials.  Accordingly, employers may wish to take a “wait and see” approach, simply reviewing the results of those employers that have already engaged in the “reopening” of the economy, in order to monitor and analyze the results of such actions.

Furthermore, once employees are back at work, employers are not yet out of the woods.  Employers must take care to ensure that employees are healthy and safe in the workplace.  As such, employers should continue to review the ever-evolving guidance from governmental agencies, such as OSHA and the CDC, concerning best health and safety practices in the workplace. Employers will likely see that there is a “new normal” and that no “one size fits all” model is available.

Employers should further ensure compliance with new federal and state legislation passed during the COVID-19 crisis concerning sick leave and family and medical leave laws, and understand their obligations concerning testing and accommodations under the ADA and other antidiscrimination laws.